Anticipatory Bail under SC/ST Act

Source: Supreme Court  

Why in News? 

Recently, Justice JB Pardiwala and Justice Manoj Misra  held that the bar on anticipatory bail under Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989 applies only when a prima facie offence is made out, and granted anticipatory bail to journalist Shajan Skaria in a case involving alleged derogatory remarks against MLA P.V. Sreenijin. 

• The Supreme Court held this in the matter of Shajan Skaria v. State of Kerala (2025). 

What was the Background of Shajan Skaria v. State of Kerala (2025) ? 

• This criminal appeal arose from proceedings under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, involving issues of anticipatory bail and the interpretation of offences under the Act. 
• The matter arose from a news item published and telecast by Shajan Skaria, editor of the Malayalam YouTube channel Marunadan Malayalee. 
• The news segment criticised the alleged maladministration of a Sports Hostel overseen by MLA P.V. Sreenijin in his role as Chairman of the District Sports Council. 
• The complainant alleged that Skaria’s remarks contained derogatory expressions against Sreenijin, attracting provisions of the SC/ST (Prevention of Atrocities) Act, 1989. 
• The allegations suggested that the statements caused humiliation on account of caste identity, bringing the case within the purview of the special legislation. 
• Based on the complaint, criminal proceedings were initiated, and offences under the SC/ST Act were invoked against Skaria. 
• An apprehension of arrest prompted Skaria to move for anticipatory bail under Section 438 of the Code of Criminal Procedure. 
• Section 18 of the SC/ST Act specifically bars the application of anticipatory bail in offences registered under the statute. 
• The prosecution argued that once an offence is alleged under the SC/ST Act, anticipatory bail cannot be granted in view of the legislative bar. 
• Skaria, on the other hand, contended that the allegations lacked the essential ingredients to constitute an offence under the Act. 
• The Kerala High Court, in June 2023, rejected his anticipatory bail plea, holding the bar applicable. 
• Aggrieved by the High Court’s refusal, Skaria preferred an appeal before the Supreme Court of India. 
• The central issue before the Court was whether anticipatory bail could be granted when the complaint did not prima facie establish the commission of an offence under the SC/ST Act. 

What were the Court’s Observations? 

• The Court observed: "If on a prima facie reading of the materials referred to in the complaint and the complaint itself, the ingredients necessary for constituting the offence are not made out, then the bar of Section 18 would not be applicable and it would be open to the courts to consider the plea for the grant pre-arrest bail on its own merits." 
• The Court held: "Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC." 
• The Court declared: "The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989." 
• The Court clarified: "The offence under Section 3(1)(r) of the Act, 1989 is not established merely on the fact that the complainant is a member of a Scheduled Caste or a Scheduled Tribe, unless there is an intention to humiliate such a member for the reason that he belongs to such community." 
• The Court observed: "Not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation. It is only in those cases where the intentional insult or intimidation takes place either due to the prevailing practice of untouchability or to reinforce the historically entrenched ideas like the superiority of the 'upper castes' over the 'lower castes/untouchables' that it could be said to be an insult or intimidation of the type envisaged by the Act, 1989." 
• The Court held: "Mere knowledge of the fact that the victim is a member of the Scheduled Caste or Scheduled Tribe is not sufficient to attract Section 3(1)(r) of the Act, 1989. The offence must have been committed against the person on the ground or for the reason that such person is a member of Scheduled Caste or Scheduled Tribe." 
• The Court emphasized: "A penal statute must receive strict construction. A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy." 
• The Court stated: "We have construed Section 18 of the Act, 1989 keeping in mind the aforesaid principles of statutory construction. We are of the view that taking any other view than the one taken by us would be unreasonable, oppressive and not in tune with the consecrated principles of our Constitution." 

What was Anticipatory Bail under SC/ST Act ? 

• Core Prohibition 
  • Section 18 creates an absolute bar on anticipatory bail under Section 438 CrPC for all offences under the SC/ST Act. The provision states unequivocally that "Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act." 
• Key Legal Statements: 
  • Complete Legislative Bar: Section 18 eliminates judicial discretion to grant pre-arrest bail in SC/ST Act cases, ensuring accused persons cannot evade arrest. 
  • Constitutional Validity: The Supreme Court has consistently upheld this provision as constitutionally valid and necessary for protecting vulnerable communities. 
  • Enhanced Protection (Section 18A): The 2018 amendment strengthened the bar by explicitly stating that Section 438 CrPC "shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court." 
  • Judicial Interpretation - Shajan Skaria Principle: The Supreme Court introduced a nuanced approach, holding that the Section 18 bar applies only when:  
    • Prima facie materials exist pointing towards commission of an offence 
    • Ingredients necessary for constituting the offence are made out 
    • A valid arrest can be made under Section 41 read with Section 60A CrPC 
  • Exception for Frivolous Cases: If prima facie reading reveals that offence ingredients are not made out, the Section 18 bar becomes inapplicable, allowing courts to consider anticipatory bail on merits. 
  • Legislative Purpose: Section 18 reflects legislative intent to maintain the deterrent effect of the Act and prevent accused persons from avoiding consequences through pre-arrest bail, while recent judicial interpretation ensures protection against misuse through the prima facie test requirement.